Stewart v. Commonwealth

Decision Date21 October 1930
PartiesStewart v. Commonwealth.
CourtUnited States State Supreme Court — District of Kentucky

2. Criminal Law — Homicide. — In homicide prosecution, deceased's statements some time after shooting and not under fear of death held not admissible as res gestae or dying declarations.

After shooting decedent walked to house and stated that he had been shot clear through, and, upon being asked whether it was accidental or on purpose, replied that it was accidental. After he had been laid on the floor in the house, decedent, upon being asked whether he was shot accidentally or on purpose, replied that defendant had shot him accidentally. Further, after decedent had been taken to hospital about an hour or more after shooting, he again stated that gun went off accidentally, and that he was accidentally shot.

3. Criminal Law. — In homicide prosecution, decedent's statements in defendant's presence that shooting was accidental held not admissible as accusatory statements calling for denial.

4. Homicide. — Decedent's statements, in defendant's presence, that shooting was accident held not binding on state; it not being in privity with deceased.

5. Homicide. — Test of dying declaration is that matter would be competent only if coming from living witness.

6. Homicide. — Dying declaration must refer to cause of death and circumstances surrounding killing, and declarant must have had knowledge whereof he speaks.

7. Homicide. — Expressions of opinion, mental impressions, and inferences not admissible, if declarant were present as witness, would not be admissible as dying declaration.

8. Criminal Law. — Declaration of decedent, to be admissible as part of res gestae, must be substantially contemporaneous with killing and illustrate, elucidate, or explain manner in which killing occurred or cause thereof.

Declaration must be so intimately interwoven with principal fact as to be regarded as part of transaction itself. It must be apparently spontaneous result of occurrence operating upon perceptive senses of the speaker, rather than the result of reasoning from collateral facts.

9. Criminal Law. — General rule is that mere opinions or conclusions of witness or declarant are not admissible.

10. Criminal Law. — Whether statement offered in criminal case is one of fact or opinion depends on consideration of its terms when viewed in light of surrounding circumstances.

11. Criminal Law. — Where doubt arises as to whether statement is one of fact or of opinion, doubt should be resolved in favor of accused.

12. Criminal Law. — If declaration in every-day language is commonly understood as statement of fact, and declarant was in position to know and intended it to be so, and is favorable to defendant, declaration would be admissible.

13. Criminal Law. — Value of statement admissible as one of fact is for jury.

14. Homicide. — In homicide prosecution, deceased's declaration immediately after shooting and at hospital that shooting was accidental held admissible as statement of fact.

Appeal from Harlan Circuit Court.

J.B. SNYDER for appellant.

J.W. CAMMACK, Attorney General, and JOHN P. CUSICK, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY COMMISSIONER STANLEY.

Reversing.

On the trial of the appellant, Brid Stewart, charged with murder, the evidence heard through witnesses introduced by the commonwealth was briefly this: The deceased, Cawood Brewer, was the stepfather as well as brother-in-law of the defendant. They had been living and working together for several years and were on friendly terms. On the afternoon of December 23, 1929 the two men had been at Bill Day's home, had left and gone a short distance, turned and were walking back in the road. Bill Bales met and talked with them a moment. The defendant had a pistol in his hand, "swinging it along with his arm stretched out." It was an automatic and belonged to the deceased. Just as Bales stepped between them, the pistol fired twice, perhaps three times, in quick succession. Brewer exclaimed, "You have shot me." Stewart insisted he had not. There had been some shooting round about and fire-crackers popping in a premature celebration of Christmas. Fred Day testified he was at his home about 150 yards away and saw the defendant "moseying along" and "pull his gun and shoot three shots." Then Brewer called to him to come and get him. He was taken to Day's house, but removed to a hospital where he died that night. He had two bullet holes in his body, entering the right side, on which side the defendant was walking.

The deceased's brother was permitted, over objection, to testify that three or four years before his death his brother and wife (defendant's mother) were quarreling as they approached the common home, and the defendant got up from the front porch and went to the back porch and returned with a Winchester rifle, and he "just throwed the gun up." Brewer had a pistol in his hand, and, when witness went to him, Stewart took his gun back in the house. He had said nothing. That was the only trouble witness ever knew of them having.

After testifying to their kinship and friendship, and to the fact that he had supported his mother and the deceased when he was out of work, the defendant stated that they had been up to Red Wine tunnel, where Brewer got some whisky. He admits that he had a drink or two, but denies that he was intoxicated. The deceased owned a German automatic pistol, and as they were walking along he asked to see it. He had been looking at it and was carrying it in his hand with his arm swinging down when some colored men just off the road began shooting, and Brewer said, "Give me my pistol." While watching the other men, he reached out his arm to hand the weapon to Brewer and it fired once, as he thought. He knew nothing of a safety device or its mechanism, and insisted that it was discharged unintentionally. While going hastily for his mother, the pistol, he said, evidently dropped out of his pocket and was lost.

The court instructed the jury on murder and the different degrees thereof, including voluntary manslaughter based on sudden heat and passion and sudden affray, and also on the reckless and careless handling of a deadly weapon. The jury found the defendant guilty under the latter instruction, as the verdict stated, and fixed his punishment at confinement in the penitentiary for 21 years. Instructions on involuntary manslaughter, accidental killing, and reasonable doubt were also given.

1. It is urged strenuously that the evidence did not authorize the instruction on voluntary manslaughter based on the reckless, wanton, or grossly careless use or handling of the weapon under which defendant was found guilty. We need not enter upon a discussion of this point, nor the distinction to be drawn between voluntary and involuntary manslaughter arising from such act, deeming it sufficient to say that no error was committed in respect to the instruction.

2. But the court did commit an error, we think, in admitting the evidence as to the incident which occurred three or four years before the homicide, as above related. Assuming the act would be otherwise competent (compare secs. 1793, 1797, Roberson's Cr. Law), it was too remote in time to be relevant in this case. Gilbert v. Commonwealth, 221 Ky. 692, 299 S.W. 569.

3. The most serious and difficult question before us relates to the exclusion and rejection of statements made by the deceased that the shooting was an accident. The reason assigned by the court was that they constituted a conclusion. Some of the statements to be considered were admitted and then excluded from consideration of the jury. Others are in the record as avowals. They may be divided into five declarations, to wit:

(1) Immediately after the shots were fired, addressing the defendant: "You have accidentally shot me."

(2) After he had walked to the house: "Fred, I am shot clear through; Brid shot me;" and he was asked, "Accidental or on purpose?" and he replied, "No, accidental."

(3) After he had been laid on the floor in Day's house, the defendant came in and kneeling down by his side said: "Kay, did I shoot you accidental or on purpose?" to which he replied: `You shot me accidental; go get Polly Ann" (his wife). Other witnesses say the conversation was this: "Kay, you know I done it accidental," and Brewer responded: "Why, Lord God, yes you did; go and tell Polly Ann."

(4) After he had been taken to the hospital, perhaps an hour or more later, he said: "He went to hand me the gun and the gun went off and accidentally shot me."

(5) His widow testified that that night Brewer said, under circumstances which indicated a sense of impending death, "It was done accidental."

Regardless of the competency of the subject-matter, it seems clear that the second, third, and fourth statements were inadmissible, for they do not come within either the res gestae or dying declaration rule. McGowan v. Commonwealth (Ky.) 117 S.W. 387; Philpot v. Commonwealth, 195 Ky. 555, 242 S.W. 839, 25 A.L.R. 1367; Ratcliffe v. Commonwealth, 231 Ky. 337, 21 S.W. (2d) 441.

The logic and principles of those rules are the same — that the circumstances attending the declarations or exclamations justify the presumption of truth, even as does the taking of a positive oath in court. In the one instance it is the spontaneous impulse accompanying or following so soon after the transaction as to raise the reasonable presumption that the utterance does not spring from a motive to fabricate or serve himself, negativing the presumption of premeditation or design. Rogers v. Commonwealth, 161 Ky. 754, 171 S.W. 464; National Life & Accident Insurance Co. v. Hedges, 233 Ky. 840, 27 S.W. (2d) 422. In the other instance the statement is admitted because made in articulo mortis,...

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  • Dean v. State
    • United States
    • Mississippi Supreme Court
    • May 27, 1935
    ... ... the case ... Railroad ... Co. v. Jackson, 92 Miss. 517; Houston v ... State, 117 Miss. 311; Stewart v. Coleman, 120 ... Miss. 28; Stevens v. Stanley, 153 Miss. 809; ... Walters v. State, 153 Miss. 709; Wesley v ... State, 153 Miss. 357; ... State, 72 Miss. 507, 17 So. 232; Jones v ... State, 79 Miss. 309, 30 So. 759; Berry v ... State, 63 Ark. 382, 38 S.W. 1038; Commonwealth v ... Griffith, 149 Ky. 405, 149 S.W. 825; Shepherd v. U.S. 78 ... L.Ed. 196 ... No ... declaration, or any part of it, is admissible ... ...
  • C. & O. Ry. Co. v. Hay
    • United States
    • United States State Supreme Court — District of Kentucky
    • March 7, 1933
    ...The acts and statements about which they testify were no part of the res gestae, and should not have been admitted. Stewart v. Com., 235 Ky. 670, 32 S.W. (2d) 29; Barton v. Com., 238 Ky. 356, 38 S.W. (2d) 218; National Life & Accident Insurance Co. v. Hedges, 233 Ky. 844, 27 S.W. (2d) It is......
  • Honaker v. Crutchfield
    • United States
    • Kentucky Court of Appeals
    • February 14, 1933
    ... ... It must be the apparently ... spontaneous result of the occurrence operating upon the ... perceptive senses of the speaker.' Stewart v. Com., 235 ... Ky. 670, 32 S.W.(2d) 29, 32." Barton v. Com., ... 238 Ky. 356, 38 S.W.2d 218, 220 ...          The ... conversation ... ...
  • Honaker v. Crutchfield
    • United States
    • United States State Supreme Court — District of Kentucky
    • February 14, 1933
    ...It must be the apparently spontaneous result of the occurrence operating upon the perceptive senses of the speaker.' Stewart v. Com., 235 Ky. 670, 32 S. W. (2d) 29, 32." Barton v. Com., 238 Ky. 356, 38 S. W. (2d) 218, The conversation narrated by Ola Crutchfield clearly indicates that her e......
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